March 2015

March 1-15

One way to do this would be with what I call an “advance notice” poison pill—a pill with a 5% threshold but also an exemption: Any shareholders that disclosed their positions within two days of crossing the threshold would avoid triggering the pill and could continue buying shares without being diluted. John Coffee, of Columbia Law School, and Darius Palia, of Rutgers Business School, have proposed a similar version of self-help, which they call a “window-closing” poison pill.

The Legislature passed auto-decline into law in 1994 at a time when state houses across the nation were reforming their juvenile justice laws. The revamping occurred during a "series of moral panics" in the wake of high-profile crimes committed by children, Elizabeth Scott, a Columbia Law School professor and expert on children's law, said in a 2013 paper titled "Miller v. Alabama and (Past and) Future of Juvenile Crime Regulation."

While underfunded public-employee pensions capture the headlines, health-insurance benefits for retired state and local workers are also a huge problem. But a recent ruling by the Supreme Court may help state and local governments scale back these benefits.

Harvey Goldschmid, a professor of law at Columbia University, died on February 12 from complications of pneumonia. He was 74. Mr. Goldschmid, who joined Columbia’s faculty in 1970, helped to put into effect the Sarbanes-Oxley Act of 2002, a corporate-reform law passed in response to the financial misconduct of major corporations like Enron.

Eric Talley, a professor at the University of California at Berkeley School of Law, offered to help by quantifying whether female students were actually shying away from corporate classes… Talley, whose wife Gillian Lester is the new dean of Columbia Law School, said it was “an awakening” when he realized that even his own advanced classes were only 40 percent female… Talley, who will begin teaching at Columbia this summer, has an additional theory. He said that the financial analysis inherent in deal work can be off-putting to those who never took an accounting course in college.

Delay has become the favourite weapon to kill projects to which environmental groups object, as Michael Graetz of Columbia Law School has explained ("The End of Energy" 2011). "Litigation to enforce new legislative requirements, especially for environmental impact statements, (has) made placing new sources of energy in service much more difficult and expensive," Graetz wrote.

Following Delaware's announcement, New Jersey and Rhode Island remain the only Northeast seaboard states left without a climate adaptation plan. Michael Gerrard, director of the Sabine Center for Climate Change Law at Columbia Law School, said the difference between Delaware and its coastal neighbor to the north is largely political.

Tax shelter investments generate pre-tax losses that turn into after-tax profits because of the tax benefits. As Columbia law professor Michael Graetz has said, “A tax shelter is a deal done by very smart people that, absent tax considerations, would be very stupid.”

Mason Tvert, a spokesman for the Marijuana Policy Project, made an analogy: "While marijuana use is not linked to violent crime, marijuana prohibition is.Jeffrey Fagan, a law professor at Columbia who teaches drug law and policy, agreed. "It's hard to reconcile Commissioner Bratton's claim with experience in the places that have either legalized marijuana or increased access via medical marijuana," Fagan says. "By linking marijuana with violence here, which is just not the case elsewhere where it's legal, he's actually making a good claim for legalization."

The University Senate executive committee is looking to vote on March 27 to approve a proposed committee on the status of underrepresented minorities at the University. Wadood and Ross said the committee would not work directly with Executive Vice President Suzanne Goldberg’s committee on race, ethnicity, and equal justice, which was announced in January, though the two committees will communicate with each other.

Connecticut soon will get $36 million of a $1.37 billion legal settlement with Standard & Poor's, resolving allegations that the credit ratings agency misled investors in rating mortgage-backed securities in the lead-up to the 2008 financial crisis. "Compliance (with the law) is the first responsibility," said James Tierney, director of the National State Attorneys General Program at Columbia University Law School.

Jagdish Bhagwati, a professor of law and economics at Columbia University and a senior fellow at the Council on Foreign Relations, said the absence of China on the agenda was the US political response to China's new aggressiveness and it was therefore built in a spirit of confrontation and containment, not cooperation. "The TPP is being sold in the US to a compliant media and unsuspecting public as evidence of American leadership on trade. But the opposite is true," said Bhagwati, a leading free trade advocate.

"Net neutrality only bans the idea of slow lanes and fast lanes, which is an incremental amount of revenue," Columbia Law School Professor Tim Wu, who coined the term "net neutrality," told CNBC. "And yes, so on the margin, there's a tiny bit of revenue that might be lost but the main income just comes from the regular business model."

When Google launched its “Art Project” four years ago, it touted it as a huge boon for freedom of information and cultural connectivity. “Museums have choices in the shaping of institutional policies,” the Columbia law professor Kenneth Crews stressed in a paper on “copyright overreaching” in 2012. “… Breaking away from familiar policy terms can sometimes better serve institutional and public interests.”

Four weeks into my new role as executive vice president for University life at Columbia, I want to use this Spectrum post to share a bit about my background as well as some initial thoughts about the new Office of University Life, its philosophy, goals, and possibilities for student involvement.

A 2011 U.S. Supreme Court ruling made it difficult for investors to sue mutual fund companies. The decision left some observers stunned. “The case astonishingly holds that an investment advisor is not liable for fraud in the prospectus of a sponsored mutual fund because the investment advisor is not the “maker” of those statements – even though the fund’s officers are all employees of the advisor (and paid for that service by the advisor) and the advisor prepares, files, and distributes the prospectus,” wrote Columbia Law School professor Jeffrey N. Gordon.

Furthermore, UA&P’s School of Law and Governance has “governance” in its name for a reason. Borrowing from Columbia Law School’s Dean David Schizer (in a Financial Times interview in 2013): “Lawyers play a critical role in policy, particularly when it comes to shaping the rules that govern business practices.” And more significantly, Dean Schizer points out: “You want the people who run the organization to think like lawyers; and you want the lawyers to think like people who run the organization.”

Based on a quick glance at his website, it appears Everson — a 60-year old Yale graduate — is a conservative who will run as a Republican. His view on taxes is an interesting and curious one, given his history: “It is time to be bold. I favor the Competitive Tax Plan authored by Columbia professor Michael Graetz.”

The campaign to free Mohamed Nasheed--the climate change activist, former president of the Maldives, and central figure in Jon Shenk's acclaimed documentary "The Island President"--is heating up. Concerned that Nasheed will soon be convicted and sentenced for trumped up charges of terrorism by his political rivals, several prominent documentary filmmakers and activists… are fighting to get the word out about his fate….including… Michael Gerrard, Director, Sabin Center for Climate Change Law, Columbia Law School.

Christie administration officials called it the "single largest environmental settlement with a corporate defendant in New Jersey history." Edward Lloyd, a professor of environmental law at Columbia University Law School, said the state either was wrong in initially claiming nearly $9 billion in damages or for settling for so much less. "I don't think you can have both judgments be accurate," he said. "It doesn't sound plausible."

“It’s an interesting feature of the death penalty in the United States,” Columbia University law professor James Liebman told The Post. “In fact, the death penalty is a minority institution. If you add up the populations of the counties that use the death penalty, it actually now is less than a quarter of the United States that really uses the death penalty.”

Black girls are disciplined at higher rates and with harsher consequences than their White counterparts, according to a new report from Columbia Law School's Center for Intersectionality and Social Policy Studies.

Reports that Sen. Bob Menendez (D-N.J.) is likely to face federal corruption charges based on his interactions with a key donor invariably raise a key question: Where is the line drawn? To answer that question, we spoke with Richard Briffault, a professor at Columbia Law School who works in the area of public corruption. Briffault summarized the question at stake: "Is there a connection between the donation and some relatively specific thing that the officeholder is expected to do, or says he will do?"

Similar stories appeared in other outlets, including Marketplace and USA Today.

Gillian Metzger (LAW’96) is the Stanley H. Fuld Professor of Law, and faculty director of the Law School’s Center for Constitutional Governance. An expert in administrative and constitutional law, with a specialization in federalism, she and several other professors wrote an amicus brief that says the principles of federalism support the tax subsidies at issue in the widely watched King v. Burwell case.

Brazil’s supreme court will investigate 54 elected officials in connection with a corruption scandal unfolding at Brazil’s state-owned oil giant, Petrobras. “It raises questions about Brazilian corporate governance that the first scandal didn’t,” says Merritt B. Fox, Law Professor at Columbia University, New York. “I would be concerned that the fact that this has happened at Petrobras would make people worry about other corporations where there is still significant government ownership and involvement.”

Human rights lawyer Amal Clooney will join the faculty of Columbia University as a visiting lecturer. Columbia announced Friday that Clooney will lecture on human rights this spring. She will also serve as a senior fellow with Columbia Law School's Human Rights Institute. "It is an honor to be invited as a visiting professor at Columbia Law School alongside such a distinguished faculty and talented student pool," Clooney said in a statement.

Similar stories appeared in many outlets, including the Guardian and the New York Daily News.

Brown University held its first National Diversity Summit this past weekend as part of a drive to make the university a more welcoming place for minority students, gay students and other under-represented individuals. The keynote speaker, Susan Sturm, a law professor at Columbia University, talked about how to measure the broad participation of people from under-represented backgrounds.

General Motors Co. as soon as Monday will disclose plans to return billions of dollars to shareholders, a move that is expected to avoid a potential proxy fight with investor Harry J. Wilson, said people familiar with the matter. The pay agreements are sometimes fraught but have improved over the years, said Robert Jackson, a Columbia University Law School professor. The debate over Mr. Wilson’s arrangement “is a bit of a red herring,” he said, adding that three-year compensation horizons for directors are “absolutely standard.”

First Amendment jurisprudence emphatically supports the notion that core political speech is the most highly protected category of speech. The analysis of planting and its relationship to unauthorized leaks of classified information draws heavily on David Pozen’s recent scholarship on the subject. As Pozen notes, “Planting depends upon leaking to give it political and epistemological breathing room; leaking, in turn, depends upon planting to give it legal breathing room. The two are fundamentally symbiotic. Plants need to be watered with leaks.”
International Business Times—March 10

Another litigious strategy, appraisal arbitrage was recently given the nod of approval by a Delaware court. All you need for an appraisal arbitrage is a corporate merger, a hedge fund and an appetite for convoluted and drawn-out legal wrangling. Writing for Harvard’s law blog, Columbia Law School lecturer Trevor Norwitz called appraisal arbitragers “a new category of holdup artists.”

“It’s a question we never really ask: How many police do we really need? We only ask how many police we can afford,” added Jeffrey Fagan, a Professor of Law at Columbia Law School. His solution to problems with policing in America? Hire fewer cops.

John Coffee, a professor at Columbia Law School, called the Senate bill an overreaction that would override not just the 2nd Circuit ruling but years of precedent and create "considerable uncertainty and chaos for the security analysts as a group."

“We are in the process of creating what we hope will become a complete collection of the climate change laws adopted by the countries of the world,” said Michael B. Gerrard, faculty director of the Sabin Center and the Andrew Sabin Professor of Professional Practice at Columbia Law School.

The large and growing volume of litigation in the U.S. courts about climate change has received an avalanche of analysis in the professional and academic literatures. In contrast, climate litigation outside the United States is little known on these shores and has gotten far less attention. For the first time, this non-U.S. climate litigation has now been compiled and analyzed.

A new study found that African-American girls are six times more likely to be suspended than white girls and are subject to harsher and more frequent discipline than their white peers. Kimberle Williams Crenshaw, law professor at ColumbiaUniversity and UCLA, authored the study, “Black Girls Matter: Pushed Out, Overpoliced and Underprotected.” She said the results might come as a surprise to many.

Market manipulation can be a fraught area of the law, legal experts say. Attempting to discredit a company, even through false statements, isn’t illegal, nor is paying others to make such statements on your behalf. Market manipulation cases rise and fall on the “intentionality and deliberateness” of making false statements to affect a stock price, said Columbia Law School Prof. Daniel Richman.

Anu Bradford knows a little something about persuasion… it is the very kind of thinking that has quietly vaulted this Columbia University law professor onto the global immigration scene… the international lawyer — herself a recent immigrant to the U.S. from Finland — is being sought by labor union leaders and U.N. immigration envoys who have become keen about turning her ideas into action. Their motivation, of course, is trying to finally align the diverse interests countries have always had in dealing with — or not dealing with — the world’s 230 million migrants.

Jane C. Ginsburg, Columbia Law School, has published The Author's Place in the Future of Copyright in Copyright in an Age of Exceptions and Limitations (Ruth Okediji, ed., Cambridge University Press, 2015). Here is the abstract.

The renewable energy sector has grown tremendously as costs of the technology have come down and new vehicles have become more fuel-efficient, said Michael B. Gerrard, director of the Sabin Center for Climate Change Law at Columbia University Law School. The possibility that these shifts could already be affecting overall carbon emissions, he said, “is a welcome splash of light amid all the gloom surrounding climate projections.”

Columbia Professor Ronald Mann wrote, while these products are not inexpensive, the decision to use them is rational because the costs of borrowing are “dwarfed by the opportunity costs of what they would lose if they did not borrow.”

In a phone interview, Columbia law professor John Coffee told me, "Civil offenses, you can overcome. You may have gotten fired. You may have gotten thrown out of the industry, but you can sneak back in elsewhere." But as for those who do end up on the registry, "I think it's more symbolic than practical," Coffee said, emphasizing that he does not disapprove of the registry as a public resource.

But Daniel C. Richman, a former federal prosecutor who is a professor at Columbia University Law School, said the statements could be admitted in court “so long as it can be shown that the tape wasn’t tampered with.”

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